Nick Krieger (@nckrieger):
At Thursday’s hearing before the House Oversight and Government Reform Committee, several Republican members of Congress blamed the United States Environmental Protection Agency (“EPA”) for not exercising its “emergency powers” to step in and fix the Flint water problem. Let’s examine this a bit more closely.
The Safe Drinking Water Act (“SDWA”), Pub.L. 93-523, was signed into law by President Gerald R. Ford on December 16, 1974. Under the SDWA, the EPA is required to promulgate administrative rules known as National Primary Drinking Water Regulations (“NPDWRs”), which set maximum levels and concentrations for certain contaminants in public drinking water systems.
Under the SDWA, almost every state (including Michigan) is primarily responsible for monitoring, testing, and ensuring the safety of its public drinking water systems. This includes the responsibility to enforce the NPDWRs and to adopt state drinking-water standards that are no less stringent than the federal rules. 42 U.S.C. 300g-2(a).
If the EPA learns that a state with primary enforcement responsibility (like Michigan) has failed to ensure the safety of public drinking water, it must first notify the state and advise the state to fix the problem. 42 U.S.C. 300g-3.
The SDWA does give the EPA certain “emergency powers” to step in and directly fix a drinking-water problem, but only if the EPA (1) learns that there is a contaminant in the drinking water that “may present an imminent and substantial endangerment to the health of persons,” and (2) discovers that “appropriate State and local authorities have not acted to protect the health of such persons.” In other words, the EPA does not have “emergency powers” to assume control over a drinking-water problem unless it can first be established that the state has failed to act. (Recall that there were no “local authorities” that could have acted in Flint because all local authority had been displaced by the state-appointed emergency manager.)
So, when we hear people blaming the EPA for not exercising its “emergency powers” under SDWA, let’s remember what that actually means. If the EPA is to blame in this regard, that necessarily implies that the state of Michigan dropped the ball and failed to protect the public health.
The other issue, of course, is the federal Lead and Copper Rule. During his testimony, Governor Rick Snyder called the rule “dumb and dangerous,” and suggested that the EPA should strengthen it. This part of Snyder’s testimony was particularly nauseating. When is the last time you heard a Republican governor ask a federal agency to promulgate a stricter environmental regulation?
If Snyder had been genuine in his call for a tougher Lead and Copper Rule, I would be the first to applaud. But he wasn’t. How do I know this? Governor Snyder hasn’t demanded that the Michigan Legislature pass a strong lead and copper law, has he? Nor has he directed the Michigan Department of Environmental Quality—an agency wholly under his personal supervision and control—to promulgate a tough lead and copper regulation. Snyder’s testimony wasn’t about truth or honesty; it was about denying responsibility and shifting blame.
In the end, it’s pretty clear that the EPA does share some of the blame in this mess. Quite simply, however, you can’t blame the EPA without first blaming the state.